Frustration Of Contract - Part 1

Author:Mr Donovan Plomp
Profession:McCarthy Tétrault LLP

In earlier posts here and here, we discussed attendance management policies. When an employee is absent for a sufficiently lengthy period, an employer may eventually rely upon the legal doctrine of "frustration", and terminate employment. (A similar concept for union employees is known as "innocent absenteeism".)

The doctrine of frustration of contract operates as a complete defence to wrongful dismissal (breach of contract) claims and human rights complaints in British Columbia. If an employee is absent from work for a long enough time due to disability, the law may recognize that their employment contract is at an end, through no fault of either party. The employee can simply no longer work.  In determining this, the courts or a human rights tribunal will ask whether the disability prevents the performance of the essential functions of the employee's job for a period of time sufficient to say that, in a practical or business sense, the object of employment had been "frustrated".

Regular communication with the employee is important...

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